It was hearing a plea against an election rule relating to the malfunctioning of an EVM which the petitioner claimed was unconstitutional.
A bench headed by Justice Ajay Rastogi told the petitioner to file a written note explaining why the provision was problematic and observed, at this stage, it was not in agreement with his stand.
“We tell you very frankly, we don’t find any reason to consider your request for Rule 49MA. What is wrong in the provision according to you? Bring your written note (on) why this is provision to be succumbed,” the court said and asked the case to be listed for hearing after vacation.
“If somebody makes a false statement, then he must know the consequence. The whole further electoral proceeding is stalled. You are informing the election officer then he is taking the call, this and that,” the bench, also comprising Justice Bela M Trivedi, said.
“If we find that some riders, strict riders have to be there – who is making the complaint and who has to take a call (it would be considered). Otherwise the system will not work,” it added.
The court was hearing a petition by Sunil Ahya alleging that Rule 49MA of ‘The Conduct of Elections Rules’ was unconstitutional as it criminalises reporting of malfunctioning of Electronic Voting Machines and Voter Verified Paper Audit Trails.
Rule 49MA reads: Where printer for paper trail is used, if an elector after having recorded his vote under rule 49M alleges that the paper slip generated by the printer has shown the name or symbol of a candidate other than the one he voted for, the presiding officer shall obtain a written declaration from the elector as to the allegation, after warning the elector about the consequence of making a false declaration.
The plea has alleged that putting the onus on the elector in cases of arbitrary deviant behaviour of machines used in election process infringes upon a citizen’s right to freedom of expression under the Constitution.
It when an elector is asked to cast test vote as prescribed under Rule 49MA, he may not be able to reproduce the same result, which he was complaining about, one more time in a sequence, because of the pre-programmed deviant behaviour of the electronic machines.
“In the course of reporting the deviant behaviour of an electronic machine used in the election process, an elector has to cast two votes; first one in secrecy and the second a test vote in the presence of the candidates or polling agents. A test vote cast subsequently in the presence of others cannot become a conclusive evidence of the deviant behaviour or otherwise of the previous vote cast in absolute secrecy,” the plea said.
It said holding an elector accountable for deviant behaviour of EVMs and VVPATs could deter them from coming forth and making any complaint which is essential for improving the process.
“This may also create an illusion of free and fair elections, whereas the fact would be that people have simply not come forward to lodge complaints,” the plea has said.
It also added that since only an elector could be a witness to the secrecy of his vote cast, it would violate Article 20(3) of the Constitution which says no person accused of an offence shall be compelled to be a witness against himself.